Early Edition: September 1, 2020

Curated summary of up-to-the-minute national security developments at home and abroad.

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Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

US DEVELOPMENTS

The Court of Appeals for the DC Circuit yesterday delivered a setback to Michael Flynn, President Trump’s former national security advisor, after it ruled that District Judge Emmet Sullivan can proceed with his investigation into the Department of Justice (DOJ)’s decision to drop the criminal case against Flynn. The court voted 8-2 to dismiss Flynn’s attempt to have the case immediately dismissed; it refused it accept arguments by Flynn’s lawyers and the DOJ that Sullivan had gone beyond his powers when he ordered a retired judge to investigate the executive branch’s decision to drop Flynn’s criminal case for lying to the FBI about his conversations with a Russian official prior to Trump taking office in 2017. “The only separation-of-powers question we must answer at this juncture is whether the appointment of an amicus and the scheduling of briefing and argument is a clearly, indisputably impermissible intrusion upon Executive authority, because that is all that the District Judge has ordered at this point,” the ruling read. “We have no trouble answering that question in the negative, because precedent and experience have recognized the authority of courts to appoint an amicus to assist their decision-making in similar circumstances.” Josh Gerstein reports for POLITICO.

A federal appeals court yesterday dismissed the House of Representative’s lawsuit to enforce a subpoena issued to former White House Counsel Donald McGahn, ruling that the House had no legal route to currently enforce the subpoenas because there is no legislation which gives it the power to do so. The 2-1 ruling has been rebuked by many that say the court failed to acknowledge previous court rulings that accepted the House’s subpoena powers and therefore disregarded already established investigatory powers the House has. The court’s decision read: “This decision does not preclude Congress (or one of its chambers) from ever enforcing a subpoena in federal court; it simply precludes it from doing so without first enacting a statute authorizing such a suit.” However, Judge Judith Rogers dissented, opining that the Supreme Court had already found that Congress’s investigative powers include the right to enforce subpoenas and compel testimony. Spencer S. Hsu and Anne E. Marimow report for the Washington Post.

Steve Bannon, Trump’s former campaign adviser, has had his trial date set to May 2021 after he was recently charged with defrauding donors of a fundraising campaign for Trump’s highly-controversial border wall with Mexico. Bannon, along with three other co-defendants, was charged two weeks ago with cheating donors out of millions of dollars for the “We Build The Wall” campaign. All three appeared virtually yesterday before District Judge Analisa Torres; federal prosecutors made clear before the court that they had seized “voluminous” emails and other communications against the four co-accused. Benjamin Weiser and William K. Rashbaum report for the New York Times.

Democrats on the House Oversight and Reform Committee have warned that they will issue subpoenas if Pentagon and State Department officials do not testify before the panel next month about the Trump administration’s Afghanistan strategy. Lawmakers, including the committee’s Chair Carolyn Maloney (D-NY), subcommittee on national security Chair Stephen Lynch (D-MA) and 13 other Democrats on the committee, sent a letter to Defense Secretary Mark Esper and Secretary of State Mike Pompeo yesterday stressing for the “final time” that officials from both departments must appear before the committee’s subcommittee on national security Sept. 9. Rebecca Kheel reports for The Hill.

Maloney announced yesterday plans to subpoena Postmaster General Louis DeJoy over his failure to provide documents related to recent operational changes to the US Postal Service (USPS) that have raised concerns nationwide. Maloney wrote in a letter to committee members that she was giving DeJoy until tomorrow to provide the documents and accused him of withholding vital information and downplaying the severity of the damage caused by recent reforms. “The subpoena clarifies a number of previous requests based on information obtained to date in order to ensure that it captures all documents within the requested categories, and it also makes clear as a legal matter that the production of these documents is mandatory,” the letter read. Kyle Cheney reports for POLITICO.

Department of Homeland Security (DHS) official Christine Ciccone has been cleared by the department’s inspector general (IG) for refusing to cooperate in an investigation into how the State Department treated a number of career government staffers. At the time of the alleged misconduct, Ciccone was the department’s deputy chief to staff; it became clear that she was the subject of the DHS’s acting IG after it sent a memo to the then-DHS secretary Kirstjen Nielsen asking her to take disciplinary action against Ciccone; however, a letter sent by the current IG’s counsel to DHS secretary Chad Wolf said that the watchdog office was withdrawing that memo as the memo did not have “an adequate factual basis.” Daniel Lippman reports for POLITICO.

Migrant children were left in Immigration and Customs Enforcement (ICE) vans overnight, the DHS IG confirmed in a recent report, affirming previous reports by NBC News in July 2018 that pointed to migrant children being left overnight in vans in an ICE detention facility parking lot in Port Isabel, TX, because of oversights and a breakdown in communication between ICE and the Department of Health and Human Services’ Office of Refugee Resettlement. The IG report found that 73 children were left waiting between 10 and 41 hours before being reunited with parents. Julia Ainsley and Jacob Soboroff report for NBC News.

TRUMP FINANCIAL RECORDS

New York Attorney General Letitia James and President Trump’s lawyers are set to battle before the Circuit Court of Appeals today over access to Trump’s tax returns. The president’s legal team will be seeking for the court to block James’s subpoena, which is the latest move in a year-long legal battle. Corinna Ramey and Deanna Paul report for the Wall Street Journal.

The House has submitted its latest attempt in accessing the financial records of Trump, with House Counsel Doug Letter arguing that if the DC Circuit Court of Appeals does not allow access to the information soon then lawmakers will “almost certainly” miss their opportunity to review the issue prior to the presidential election. In the latest legal filing before the court, Letter asked the court to not send the case back to the lower court but to decide the issue itself, bearing in mind the subpoena was issued last year April. He also made clear that the House had already met the Supreme Court’s earlier ruling which set out guidance for when Congress can access a president’s financial records. Kyle Cheney reports for POLITICO.

Manhattan District Attorney Cyrus Vance Jr, who is currently mid legal battle with Trump over subpoenas he issued for the president’s financial records, “may have already obtained the pertinent New York state tax returns for the Trump Organization and its executives, including Trump and his family,” writes Martin J. Sheil for Just Security, who explains what further information may be revealed and what other “surprises” the public can expect.

US ELECTIONS

Multiple senior House and Senate Democrats have demanded that the Office of the Director of National Intelligence (ODNI) brings back in-person election security briefings to Congress, after a letter sent to Congress, Aug. 28, by Director of National Intelligence (DNI) John Ratcliffe, said a decision had been taken to deliver all future briefings in writing. The group, led by ranking member of the Senate Rules Committee Amy Klobuchar (D-MN), stressed in a letter to Ratcliffe that his office had a legal obligation under the Intelligence Reform and Terrorism Prevention Act to keep policymakers “fully and complete informed” on intelligence issues. Maggie Miller reports for The Hill.

Backlogs in the US Citizenship and Immigration Services (USCIS) have prevented many American citizenship applications and could block many people from voting in this year’s presidential election. The USCIS has reported that over 700,000 applications are pending, although a spokesperson did say that 600,000 applications are expected to be dealt with in this fiscal year, which ends next month. Michelle Ye Hee Lee reports for the Washington Post.

At a time when public indictments and overt disclosures by the Justice Department could affect the presidential election, Attorney General William Barr’s “conception” of the Justice Department’s rule of forbearance is “wrong,” writes Co-Editor-in-Chief Ryan Goodman for Just Security, arguing that “Barr knows the true scope of the rule though he has tried to bury it. With so many Justice Department alums and now the broader legal community and public understanding the truth as well, the question is whether others in the department will violate their oaths and do lasting damage to their reputations by participating in Barr’s current course of action.”

CORONAVIRUS

The novel coronavirus has infected over 6 million and killed close to 184,000 people in the United States, according to data compiled by Johns Hopkins University. Globally, there is more than 25.5 million confirmed coronavirus cases and over 851,000 deaths. Sergio Hernandez, Sean O’Key, Amanda Watts, Byron Manley and Henrik Pettersson report for CNN.

Phase 3 trials for a coronavirus vaccine in the US have started by UK drugmaker AstraZeneca, the third company to initiate this phase of trials for vaccines in the United States. Andrea Kane reports for CNN.

A map and analysis of all confirmed cases of the virus in the US is available at the New York Times.

US and worldwide maps tracking the spread of the pandemic are available at the Washington Post.

A state-by-state guide to lockdown measures and reopenings is provided by the New York Times.

Latest updates on the pandemic at The Guardian.

PROTESTS AND RACIAL INJUSTICE REFORM

President Trump yesterday declined to condemn the actions of Kyle Rittenhouse, the 17-year-old who allegedly shot and killed two protestors in Kenosha, WI, arguing that it appeared he was acting in self-defense. Trump’s views contradict that of law enforcement, who have arrested and charged Rittenhouse with six criminal counts, including first-degree intentional homicide. Brett Samuels reports for The Hill.

Trump does not want to use the Insurrection Act to police nationwide protests over systemic racism and police brutality, White House press secretary Kayleigh McEnany made clear yesterday, stating: “what he does want is to help these cities where he can.” McEnany’s comments follow recent suggestions by the president that he was considering invoking the Act which enables him to send active-duty troops onto the streets to address unrest. Brett Samuels reports for The Hill.

UAE-ISRAEL RELATIONS

Senior US and Israeli officials arrived in the UAE yesterday on a symbolic first direct flight between Tel Aviv and Abu Dhabi to finalize details on normalizing ties between the nations. President Trump’s senior adviser Jared Kushner was leading discussions for the United States and told reporters aboard the flight that the potential sale of US F-35 fighters to the UAE will be discussed between Israeli Prime Minister Benjamin Netanyahu and Trump “at some point.” Steve Hendrix reports for the Washington Post.

A timeline of “failed peace initiatives” between Israel and the UAE is provided by Jeffrey Heller reporting for Reuters.

OTHER DEVELOPMENTS                      

The US yesterday vetoed a UN Security Council resolution on Islamic State fighters because it did not address “the crucial first step” of repatriation from Syria and Iraq. The United States’ veto was in direct opposition to the other 14 council members who voted in favor of the resolution. AP reporting.

Signatories of the 2015 Iran Nuclear deal are meeting in Vienna today to discuss the future of the accord that has been under fire following the US’s withdrawal in 2018. Officials from Britain, France, Germany, China and Russia will sit down today to discuss their next steps on the deal. Al Jazeera reporting.

Taliban fighters have killed at least three Afghan government troops in an attack on a military base in the eastern city of Gardez, a spokesperson confirmed, adding that at least a further five were injured. Al Jazeera reporting.

Palestinian group Hamas and Israel have reached “an understanding” that could bring about an end to the recent escalation in conflict between the two sides, the office of Hamas leader Yahya Sinwar said yesterday, although Israel has yet to comment on the announcement. Al Jazeera reporting.

Turkey announced yesterday that it is ramping up its gas exploration in the much-contested waters in the eastern Mediterranean Sea, a move that European officials have said is unlawful. Turkish officials said it will continue to survey the area until Sept. 12. Al Jazeera reporting.

Sudan’s government and the country’s main rebel alliance, the Sudan Revolutionary Front (SRF), agreed on a peace deal yesterday which will hopefully end a 17-year conflict. The news was welcomed by the United States, the United Kingdom and Norway. Reuters reporting 

About the Author(s)

Siven Watt

Associate News Editor at Just Security and Legal Fellow at JUSTICE, a law reform and human rights organization based in the UK. Follow him on Twitter (@SivenWatt)